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When is it Possible to Dismiss an Employee for Gross Misconduct?

Gross misconduct is misconduct so serious as to justify the immediate dismissal of an employee. Certain acts, such as theft, fraud, physical violence or serious negligence would almost always be gross misconduct.

Employers must always take into account the nature of their business and the circumstances surrounding the misconduct before any decision to dismiss is made. What is deemed to be gross misconduct in one industry may not be in another. For example, regularly using offensive language may be treated differently in different sectors and working environments.

An employee with qualifying service (two years continuous service) is protected from unfair dismissal. A fair procedure, including investigation, disciplinary and appeal stages, should be followed before reaching a decision on the outcome, as failure to do so could leave the business exposed to an unfair dismissal claim in the employment tribunal and associated costs.

Failure to follow the ACAS Code of Practice could also result in compensation being increased by 25%. There are detailed provisions for each stage of the procedure that should be followed, and employers should seek advice if in doubt.

Reasonable to Dismiss?

For a gross misconduct dismissal to be fair, the employer must be able to show that the misconduct was the reason for the dismissal and that in the circumstances it was fair and reasonable to dismiss. The employer does not have to show that the employee was guilty of gross misconduct for the dismissal to be fair.

Whether it was reasonable to dismiss is determined by whether the employer reasonably believed at the time of the dismissal that the employee was guilty of the alleged gross misconduct and whether the employer had grounds to believe that the employee was guilty of that misconduct.

To do this, the employer must conduct such an investigation that is fair in the circumstances. This usually includes collating evidence including relevant documents and witness statements and giving the employee the opportunity to explain themselves and respond to the evidence collated.

If there are any mitigating circumstances or if the misconduct was out of character for the employee, the employer must be seen to take this into account.

Consequences for the Employee

Dismissal for gross misconduct does not attract notice pay and a gross misconduct dismissal can have huge consequences for an employee, particularly in certain professions.

The greater the potential consequences for the employee, the greater the obligation on the employer to show the investigation and disciplinary process was reasonable.

Alternatives to Dismissal

Depending on the circumstances, employers may wish to consider offering a demotion and a warning as an alternative to dismissal. You should follow a fair process and ensure contractual terms are not breached if you wish to pursue this option to avoid inadvertently breaching the contract and exposing the employer to further claims.

It is at the employer’s discretion to exercise leniency, although they should bear in mind setting precedents and being consistent when exercising such discretion.

Remember, settlement agreements are also an option should the employer want to avoid the risk of a tribunal claim.

If you need any help and advice in relation to the above, please do not hesitate to contact me or the team on 01133 50 40 30 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Emma Roberts
Latest posts by Emma Roberts (see all)
Emma Roberts

Emma is a trainee solicitor at SCE Solicitors. Emma commenced her training contract in September 2018 and is currently working in the employment law department assisting director Samira Cakali. Emma also assists in the running of the firm’s myHR service where she can support you in the day-to-day management of your staff.

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